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Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Sep 01 1:00 PM-16CV000554
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IN THE COURT OF COMMON PLEAS
FRANKLIN COUNTY, OHIO
Libertarian Party of Ohio,
Case No. 16 CV 554
Plaintiff,
v. Judge David C. Young
Jon Husted,
Ohio Secretary of State, et al.,
Defendants.
Decision & Entry
I Defendants’ Motion to Strike & Plaintiff's Motion for Leave
The Court will first address the Motion of Defendants Ohio Secretary of State Jon Husted
and Ohio Attorney General Mike DeWine to Strike Plaintiff's August 8, 2016 Notice of
Supplemental Authority filed August 10, 2016 at 11:08 a.m. Plaintiff filed a Memorandum in
Opposition on August 10, 2016 at 4:19 p.m. Loc. R. 21.01 provides: “The moving party shall
serve any reply brief on or before the 7th day after the date of service as set forth on the
certificate of service attached to the served copy of the answer brief.” No reply brief was filed
within the time limit provided by Loc. R. 21.01.
Plaintiff also filed a Motion for Leave to File Notice of Supplemental Authority /nstanter
on August 10, 2016 at 4:06 p.m. Defendants filed a Memorandum in Opposition to the Motion
for Leave on August 15, 2016. Again, no reply brief was filed within the time limit provided by
Loc. R. 21.01
On August 8, 2016, Plaintiff filed Notice of Supplemental Authority (“Notice”) without
requesting, or being granted leave, to do so. Loc. R. 21.01 provides:
All motions shall be accompanied by a brief stating the grounds
and citing the authorities relied upon. The opposing counsel or a
Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Sep 01 1:00 PM-16CV000554
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party shall serve any answer brief on or before the 14th day after
the date of service as set forth on the certificate of service attached
to the served copy of the motion. The moving party shall serve
any reply brief on or before the 7th day after the date of service as
set forth on the certificate of service attached to the served copy of
the answer brief. On the 28th day after the motion is filed, the
motion shall be deemed submitted to the Trial Judge. Oral
hearings on motions are not permitted except upon leave of the
Trial Judge upon written request by a party. The time and length
of any oral hearing shall be fixed by the Trial Judge. Except as
otherwise provided, this Rule shall apply to all motions.
Trial courts have the inherent power to manage their dockets. Brisco v. U.S. Restoration
& Remodeling, Inc., 10th Dist. Franklin Nos. 14AP-533, 14AP-543, 2015-Ohio-3567, § 11,
quoting State ex rel. Charvat v. Frye, 114 Ohio St.3d 76, 2007-Ohio-2882, 23, 868 N.E.2d 270.
A trial court's decision to grant a motion to strike will not be overturned on appeal absent and
abuse of discretion. /d., quoting Embry v. Adm'r, Bureau of Workers' Comp., 10th Dist. No.
04AP-1374, 2005-Ohio-7021, { 12.
Defendants argue that the Notice constitutes supplemental briefing without leave
Plaintiff then argues that obtaining leave is unnecessary because the Local Rules do not
expressly provide that leave is required to supplement the record with newly decided authority
Plaintiff attached the Notice as an unnumbered exhibit to its Motion for Leave. Upon
review, the Notice goes well beyond simply providing the Court with the citation for the recently
decided case law. This Court declines to leave briefing open indefinitely. Allowing Plaintiff to
provide argument as to new authority, without then re-opening briefing to Defendants, would be
unjust and would be in contravention of Loc. R. 21.01.
For the foregoing reasons, the Court orders the Notice stricken to the extent that it
contains legal argument. Therefore, both Defendants’ Motion to Strike and Plaintiff's Motion
for Leave are GRANTED IN PART
Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Sep 01 1:00 PM-16CV000554
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Il. Plaintiff's Rule 59 Motion for New Trial And Accompanying Rule 60 Motion to Stay
Judgment
Plaintiff filed a Rule 59 Motion for New Trial and Accompanying Rule 60 Motion to
Stay Judgment on June 7, 2016. Defendants filed a Memorandum in Opposition on June 21,
2016. Plaintiff then filed a Reply on June 23, 2016. A Notice of Appeal was filed on July 6,
2016 and this Court stayed ruling on the instant Motion pending appeal on July 7, 2016.
Pursuant to 16AP-496, the Tenth District Court of Appeals remanded this matter for the limited
purpose of allowing a ruling on the pending Motion for New Trial.
First, the Court will address Plaintiff's request for a stay of judgment. Plaintiff's Motion
for Stay is not well-taken. The entirety of Plaintiff's argument is based upon the appeal of Judge
Watson’s Decision in Libertarian Party of Ohio v. Husted, No. 13-953 (S.D. Ohio, May 20,
2016). That appeal was pending before the Sixth Circuit Court of Appeals at the time the instant
Motion was filed. On July 29, 2016, the Sixth Circuit rendered an Opinion affirming Judge
Watson’s Decision. Libertarian Party of Ohio v. Husted, 6th Cir. No. 16-3537, 2016 U.S. App
LEXIS 13811 (July 29, 2016). As Plaintiff offers no other argument in support of a stay, the
Court hereby DENIES Plaintiff's Motion to Stay Judgment
Finally, the Court will address Plaintiff's request for a new trial. Plaintiff relies on Civ.R.
59(A), which provides in pertinent part:
A new trial may be granted to all or any of the parties and on all or
part of the issues upon any of the following grounds: * * * (8)
Newly discovered evidence, material for the party applying, which
with reasonable diligence he could not have discovered and
produced at trial; * * * In addition to the above grounds, a new
trial may also be granted in the sound discretion of the court for
good cause shown
Once again, the entirety of Plaintiff's argument, contained in the Motion, rests with the
now decided Sixth Circuit appeal of Judge Watson’s Decision. See Libertarian Party of Ohio v.
Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Sep 01 1:00 PM-16CV000554
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Husted, 6th Cir. No. 16-3537, 2016 U.S. App. LEXIS 13811 (July 29, 2016) This is
unpersuasive as the Sixth Circuit has affirmed the judgment from the District Court. /d. at *56.
The Court notes that it has reviewed the case contained in Plaintiff's Notice. It is unclear
how this case law fits into Plaintiff's argument, which was based entirely on the appeal The
Sixth Circuit issued the Decision affirming the judgment of the District Court, which rendered
moot Plaintiff's argument in the instant Motion. This effort to salvage an argument after the
Sixth Circuit Decision is not convincing and appears disingenuous. Nonetheless, the Court has
reviewed State v. Mole, 2016-Ohio-5124 and finds it unpersuasive
For the foregoing reasons, the Court hereby DENIES Plaintiff's Rule 59 Motion for New
Trial.
IT IS SO ORDERED.
Copies electronically to:
Mark R. Brown & Mark G. Kafantaris
Counsel for Plaintiff
Steven T. Voigt, Sarah E. Pierce, Jordan S. Berman, & Halli B. Watson
Counsel for Defendants
Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Sep 01 1:00 PM-16CV000554
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Franklin County Court of Common Pleas
Date: 09-01-2016
Case Title: LIBERTARIAN PARTY OHIO -VS- OHIO SECRETARY STATE ET
AL
Case Number: 16CV000554
Type: DECISION/ENTRY
It Is So Ordered.
Hed} Gpsop
/s/ Judge David C. Young
Electronically signed on 2016-Sep-01 page
5 of 5
Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Sep 01 1:00 PM-16CV000554
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Court Disposition
Case Number: 16CV000554
Case Style: LIBERTARIAN PARTY OHIO -VS- OHIO SECRETARY
STATE ET AL
Motion Tie Off Information:
1. Motion CMS Document Id: 16CV0005542016-08-1099960000
Document Title: 08-10-2016-MOTION FOR LEAVE TO FILE -
PLAINTIFF: LIBERTARIAN PARTY OHIO
Disposition: MOTION GRANTED IN PART
2. Motion CMS Document Id: 16CV0005542016-08- 1099980000
Document Title: 08-10-2016-MOTION TO STRIKE - DEFENDANT:
OHIO SECRETARY STATE
Disposition: MOTION GRANTED IN PART
Preview
Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Sep 01 1:00 PM-16CV000554 0D211 - C3 IN THE COURT OF COMMON PLEAS FRANKLIN COUNTY, OHIO Libertarian Party of Ohio, Case No. 16 CV 554 Plaintiff, v. Judge David C. Young Jon Husted, Ohio Secretary of State, et al., Defendants. Decision & Entry I Defendants’ Motion to Strike & Plaintiff's Motion for Leave The Court will first address the Motion of Defendants Ohio Secretary of State Jon Husted and Ohio Attorney General Mike DeWine to Strike Plaintiff's August 8, 2016 Notice of Supplemental Authority filed August 10, 2016 at 11:08 a.m. Plaintiff filed a Memorandum in Opposition on August 10, 2016 at 4:19 p.m. Loc. R. 21.01 provides: “The moving party shall serve any reply brief on or before the 7th day after the date of service as set forth on the certificate of service attached to the served copy of the answer brief.” No reply brief was filed within the time limit provided by Loc. R. 21.01. Plaintiff also filed a Motion for Leave to File Notice of Supplemental Authority /nstanter on August 10, 2016 at 4:06 p.m. Defendants filed a Memorandum in Opposition to the Motion for Leave on August 15, 2016. Again, no reply brief was filed within the time limit provided by Loc. R. 21.01 On August 8, 2016, Plaintiff filed Notice of Supplemental Authority (“Notice”) without requesting, or being granted leave, to do so. Loc. R. 21.01 provides: All motions shall be accompanied by a brief stating the grounds and citing the authorities relied upon. The opposing counsel or a Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Sep 01 1:00 PM-16CV000554 0D211 - c4 party shall serve any answer brief on or before the 14th day after the date of service as set forth on the certificate of service attached to the served copy of the motion. The moving party shall serve any reply brief on or before the 7th day after the date of service as set forth on the certificate of service attached to the served copy of the answer brief. On the 28th day after the motion is filed, the motion shall be deemed submitted to the Trial Judge. Oral hearings on motions are not permitted except upon leave of the Trial Judge upon written request by a party. The time and length of any oral hearing shall be fixed by the Trial Judge. Except as otherwise provided, this Rule shall apply to all motions. Trial courts have the inherent power to manage their dockets. Brisco v. U.S. Restoration & Remodeling, Inc., 10th Dist. Franklin Nos. 14AP-533, 14AP-543, 2015-Ohio-3567, § 11, quoting State ex rel. Charvat v. Frye, 114 Ohio St.3d 76, 2007-Ohio-2882, 23, 868 N.E.2d 270. A trial court's decision to grant a motion to strike will not be overturned on appeal absent and abuse of discretion. /d., quoting Embry v. Adm'r, Bureau of Workers' Comp., 10th Dist. No. 04AP-1374, 2005-Ohio-7021, { 12. Defendants argue that the Notice constitutes supplemental briefing without leave Plaintiff then argues that obtaining leave is unnecessary because the Local Rules do not expressly provide that leave is required to supplement the record with newly decided authority Plaintiff attached the Notice as an unnumbered exhibit to its Motion for Leave. Upon review, the Notice goes well beyond simply providing the Court with the citation for the recently decided case law. This Court declines to leave briefing open indefinitely. Allowing Plaintiff to provide argument as to new authority, without then re-opening briefing to Defendants, would be unjust and would be in contravention of Loc. R. 21.01. For the foregoing reasons, the Court orders the Notice stricken to the extent that it contains legal argument. Therefore, both Defendants’ Motion to Strike and Plaintiff's Motion for Leave are GRANTED IN PART Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Sep 01 1:00 PM-16CV000554 0D211 - C41 Il. Plaintiff's Rule 59 Motion for New Trial And Accompanying Rule 60 Motion to Stay Judgment Plaintiff filed a Rule 59 Motion for New Trial and Accompanying Rule 60 Motion to Stay Judgment on June 7, 2016. Defendants filed a Memorandum in Opposition on June 21, 2016. Plaintiff then filed a Reply on June 23, 2016. A Notice of Appeal was filed on July 6, 2016 and this Court stayed ruling on the instant Motion pending appeal on July 7, 2016. Pursuant to 16AP-496, the Tenth District Court of Appeals remanded this matter for the limited purpose of allowing a ruling on the pending Motion for New Trial. First, the Court will address Plaintiff's request for a stay of judgment. Plaintiff's Motion for Stay is not well-taken. The entirety of Plaintiff's argument is based upon the appeal of Judge Watson’s Decision in Libertarian Party of Ohio v. Husted, No. 13-953 (S.D. Ohio, May 20, 2016). That appeal was pending before the Sixth Circuit Court of Appeals at the time the instant Motion was filed. On July 29, 2016, the Sixth Circuit rendered an Opinion affirming Judge Watson’s Decision. Libertarian Party of Ohio v. Husted, 6th Cir. No. 16-3537, 2016 U.S. App LEXIS 13811 (July 29, 2016). As Plaintiff offers no other argument in support of a stay, the Court hereby DENIES Plaintiff's Motion to Stay Judgment Finally, the Court will address Plaintiff's request for a new trial. Plaintiff relies on Civ.R. 59(A), which provides in pertinent part: A new trial may be granted to all or any of the parties and on all or part of the issues upon any of the following grounds: * * * (8) Newly discovered evidence, material for the party applying, which with reasonable diligence he could not have discovered and produced at trial; * * * In addition to the above grounds, a new trial may also be granted in the sound discretion of the court for good cause shown Once again, the entirety of Plaintiff's argument, contained in the Motion, rests with the now decided Sixth Circuit appeal of Judge Watson’s Decision. See Libertarian Party of Ohio v. Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Sep 01 1:00 PM-16CV000554 0D211 - c4 Husted, 6th Cir. No. 16-3537, 2016 U.S. App. LEXIS 13811 (July 29, 2016) This is unpersuasive as the Sixth Circuit has affirmed the judgment from the District Court. /d. at *56. The Court notes that it has reviewed the case contained in Plaintiff's Notice. It is unclear how this case law fits into Plaintiff's argument, which was based entirely on the appeal The Sixth Circuit issued the Decision affirming the judgment of the District Court, which rendered moot Plaintiff's argument in the instant Motion. This effort to salvage an argument after the Sixth Circuit Decision is not convincing and appears disingenuous. Nonetheless, the Court has reviewed State v. Mole, 2016-Ohio-5124 and finds it unpersuasive For the foregoing reasons, the Court hereby DENIES Plaintiff's Rule 59 Motion for New Trial. IT IS SO ORDERED. Copies electronically to: Mark R. Brown & Mark G. Kafantaris Counsel for Plaintiff Steven T. Voigt, Sarah E. Pierce, Jordan S. Berman, & Halli B. Watson Counsel for Defendants Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Sep 01 1:00 PM-16CV000554 0D211 - c4 Franklin County Court of Common Pleas Date: 09-01-2016 Case Title: LIBERTARIAN PARTY OHIO -VS- OHIO SECRETARY STATE ET AL Case Number: 16CV000554 Type: DECISION/ENTRY It Is So Ordered. Hed} Gpsop /s/ Judge David C. Young Electronically signed on 2016-Sep-01 page 5 of 5 Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Sep 01 1:00 PM-16CV000554 0D211 - c4 Court Disposition Case Number: 16CV000554 Case Style: LIBERTARIAN PARTY OHIO -VS- OHIO SECRETARY STATE ET AL Motion Tie Off Information: 1. Motion CMS Document Id: 16CV0005542016-08-1099960000 Document Title: 08-10-2016-MOTION FOR LEAVE TO FILE - PLAINTIFF: LIBERTARIAN PARTY OHIO Disposition: MOTION GRANTED IN PART 2. Motion CMS Document Id: 16CV0005542016-08- 1099980000 Document Title: 08-10-2016-MOTION TO STRIKE - DEFENDANT: OHIO SECRETARY STATE Disposition: MOTION GRANTED IN PART